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Thursday, 16 February 2012
Page: 1592


Mr BANDT (Melbourne) (10:47): by leave—I move amendments (1) to (70) on sheet 2 together:

(1) Schedule 1, item 2, page 3 (lines 23 and 24), omit paragraph 3(d), substitute:

(d) protecting workplace rights through the prohibition of sham contracting arrangements; and

(2) Schedule 1, item 2, page 3 (line 26), at the end of section 3, add:

; and (f) protecting vulnerable workers.

(3) Schedule 1, item 10, page 4 (line 17), omit "59C(3)", substitute "15(4)".

(4) Schedule 1, item 11, page 4 (lines 18 and 19), omit the item, substitute:

11 Subsection 4(1) (definition of civil remedy provision )

Repeal the definition, substitute:

civil remedy provision has the same meaning as in the FW Act.

(5) Schedule 1, page 5, after item 15 (after line 3), insert:

15A Subsection 4(1) (definition of CSC )

Repeal the definition.

(6) Schedule 1, item 19, page 5 (lines 13 to 16), omit the item.

(7) Schedule 1, item 25, page 6 (line 6), omit "Director", substitute "Fair Work Ombudsman".

(8) Schedule 1, item 25, page 6 (line 8), omit "59", substitute "15".

(9) Schedule 1, item 35, page 7 (lines 5 to 7), omit the item.

(10) Schedule 1, page 8, after item 47 (after line 18), insert:

47A Paragraph 5(1)(d)

Before "operation", insert "on-site".

(11) Schedule 1, item 48, page 8 (lines 19 to 22), omit the item, substitute:

48 Subparagraph 5(1)(d)(iv)

Omit ", whether carried out on-site or off-site".

48A Paragraph 5(1)(f)

Omit "purpose;", substitute "purpose."

48B Paragraph 5(1)(g)

Repeal the paragraph.

(12) Schedule 1, item 49, page 9 (line 3), omit "Director", substitute "Establishment".

(13) Schedule 1, item 49, page 9 (line 6), omit "a Director of", substitute ", within the Office of the Fair Work Ombudsman,".

(14) Schedule 1, item 49, page 9 (line 9), omit "Director", substitute "Fair Work Ombudsman".

(15) Schedule 1, item 49, page 9 (line 9), after "functions", insert "under this Act".

(16) Schedule 1, item 49, page 9 (line 31), omit "Director", substitute "Fair Work Ombudsman".

(17) Schedule 1, item 49, page 10 (line 5), omit "participants;", substitute "participants.".

(18) Schedule 1, item 49, page 10 (line 8), omit paragraph 10(i).

(19) Schedule 1, item 49, page 10 (line 9), omit the note, substitute:

Note:   The Fair Work Ombudsman also has the functions of a Fair Work Building Industry Inspector (see section 16).

(20) Schedule 1, item 49, page 10 (line 12), omit "Director", substitute "Fair Work Ombudsman".

(21) Schedule 1, item 49, page 10 (line 13), omit "Director", substitute "Fair Work Ombudsman in relation to this Act".

(22) Schedule 1, item 49, page 10 (lines 14 and 15), omit paragraph 11(1)(b), substitute:

(b) the manner in which the Fair Work Ombudsman is to perform or exercise the functions or powers of the Fair Work Ombudsman under this Act.

(23) Schedule 1, item 49, page 10 (line 18), omit "Director", substitute "Fair Work Ombudsman".

(24) Schedule 1, item 49, page 10 (line 23), omit "Director", substitute "Fair Work Ombudsman".

(25) Schedule 1, item 49, page 10 (line 24), omit "Director's", substitute "Fair Work Ombudsman's".

(26) Schedule 1, item 49, page 10 (line 25), at the end of subsection 12(1), add "under this Act".

(27) Schedule 1, item 49, page 10 (line 28), omit "Director", substitute "Fair Work Ombudsman".

(28) Schedule 1, item 49, page 11 (line 1), omit "Director", substitute "Fair Work Ombudsman".

(29) Schedule 1, item 49, page 11 (line 3), omit "and (3), the Director", substitute ", the Fair Work Ombudsman".

(30) Schedule 1, item 49, page 11 (line 4), omit "Director's", substitute "Fair Work Ombudsman's".

(31) Schedule 1, item 49, page 11 (line 7), omit "an inspector", substitute "a Fair Work Building Industry Inspector".

(32) Schedule 1, item 49, page 11 (line 9), omit all the words from and including "Director" to the end of subsection 13(2), substitute "Fair Work Ombudsman must not delegate his or her functions or powers as a Fair Work Building Industry Inspector".

(33) Schedule 1, item 49, page 11 (lines 15 to 23), omit subsection 13(3).

(34) Schedule 1, item 49, page 11 (line 26), omit "Director", substitute "Fair Work Ombudsman".

(35) Schedule 1, item 49, page 11 (line 29), omit "Director", substitute "Fair Work Ombudsman".

(36) Schedule 1, item 49, page 12 (line 2), omit "Director", substitute "Fair Work Ombudsman".

(37) Schedule 1, item 49, page 12 (line 4), omit "Director's", substitute "Fair Work Ombudsman's".

(38) Schedule 1, item 49, page 12 (line 5), omit "Director's", substitute "Fair Work Ombudsman's".

(39) Schedule 1, item 49, page 12 (line 14), omit "Director", substitute "Fair Work Ombudsman".

(40) Schedule 1, item 49, page 12 (line 16), omit "Director", substitute "Fair Work Ombudsman".

(41) Schedule 1, item 49, page 12 (line 18) to page 14 (line 29), omit sections 15 to 22, substitute:

Part 2—Fair Work Building Industry Inspectors

15 Appointment

(1) The Fair Work Ombudsman may, in writing, appoint as a Fair Work Building Industry Inspector:

(a) a person who has been appointed, or who is employed, by the Commonwealth; or

(b) a person who has been appointed, or who is employed, by a State or Territory, or who holds an office or appointment under a law of a State or Territory.

(2) The Fair Work Ombudsman may appoint a person as a Fair Work Building Industry Inspector only if the Fair Work Ombudsman is satisfied that the person is of good character.

(3) For the purposes of subsection (1), a Fair Work Building Industry Inspector is to be appointed under the FW Act as a Fair Work Inspector but must not perform functions or exercise powers other than:

(a) in relation to a building matter; and

(b) in accordance with such conditions and restrictions as are specified in his or her instrument of appointment.

(4) A matter is a building matter if it relates to building work.

Note:   A Fair Work Building Industry Inspector is eligible for reappointment (see section 33AA of the Acts Interpretation Act 1901).

16 Fair Work Ombudsman is a Fair Work Building Industry Inspector

   The Fair Work Ombudsman is a Fair Work Building Industry Inspector by force of this section.

17 Inspectors' power to monitor compliance with Building Code

(1) Fair Work Building Industry Inspectors are also to monitor compliance with the Building Code.

(2) For this purpose, a Fair Work Building Industry Inspector has the functions and powers under Subdivision D of Division 3 of Part 5-2 of the FW Act that he or she would have if the Building Code were a fair work instrument.

(42) Schedule 1, item 49, page 15 (line 1), omit "2", substitute "3".

(43) Schedule 1, item 49, page 15 (lines 8 to 15), omit all the words from and including "is to make", substitute:

is:

(a) to determine:

   (i) policies to guide the performance and exercise of the Fair Work Ombudsman's functions and powers under this Act; and

   (ii) the priorities of, and the programs to be implemented by, the Fair Work Ombudsman in the performance and exercise of the Fair Work Ombudsman's functions and powers under this Act; and

(b) to make recommendations to the Fair Work Ombudsman about any matter that the Minister requests the Advisory Board to consider.

(44) Schedule 1, item 49, page 15 (line 18), omit paragraph 25(a).

(45) Schedule 1, item 49, page 15 (line 26), omit "the Director or".

(46) Schedule 1, item 49, page 16 (line 13), omit "the Director or".

(47) Schedule 1, item 49, page 16 (line 16), omit "the Director or".

(48) Schedule 1, item 49, page 17 (line 18), omit "the Director or".

(49) Schedule 1, item 49, page 17 (line 21), omit "the Director or".

(50) Schedule 1, item 49, page 18 (line 2), omit "the Director or".

(51) Schedule 1, item 49, page 18 (line 13), omit "Director", substitute "Fair Work Ombudsman".

(52) Schedule 1, item 49, page 18 (lines 14 and 15), omit all the words from and including "Director" to the end of subsection 26G(2), substitute "Fair Work Ombudsman and one other member".

(53) Schedule 1, item 49, page 19 (line 7) to page 20 (line 8), omit Part 3.

(54) Schedule 1, items 50 to 73, page 20 (line 10) to page 42 (line 23), omit the items, substitute:

50 Section 28

Repeal the section, substitute:

28 Building Code to be comprehensive statement

   In contracting for building work, the Commonwealth must not require compliance, by a building industry participant, with a requirement that is not:

(a) set out in the Building Code; or

(b) of a kind specified in the Building Code as being exempt from the operation of this section.

28A Building Code to be consistent with FWA instruments

   The Building Code has no effect to the extent that it is inconsistent with an instrument (however described):

(a) that has been approved by FWA; and

(b) is in force.

51 Chapters 5 and 6

Repeal the Chapters, substitute:

Chapter 5—Sham arrangements

36 Sham arrangements

(1) A person (the employer) must not engage, or propose to engage, an individual to perform building work under a contract for services where the true character of the engagement or proposed engagement is that of employment.

Note:   This subsection is a civil remedy provision (see Part 4-1 of the FW Act).

(2) A person (the employer) must not enter into a contract with another person (the contractor) under which services in the nature of building work are to be provided to the employer, if:

(a) the services are to be performed by an individual (who is not the contractor); and

(b) the individual has any ownership in, or is an officer or trustee of, the contractor; and

(c) if the contract were entered into with the individual, the contract would be a contract of employment.

Note:   This subsection is a civil remedy provision (see Part 4-1 of the FW Act).

(3) The employer's state of mind is not relevant for the purposes of subsection (1) or (2).

(4) If a person (the employer) enters into a contract in contravention of subsection (1) or (2), then, for the purposes of determining the rights and obligations of the employer and the individual in relation to the performance of services under the contract, the individual is taken to be an employee of the employer.

(5) Subsections (1) to (3) have effect as if:

(a) they were included in Division 6 of Part 3-1 of the FW Act; and

(b) the term building industry participant had the same meaning in that Act as it has in this Act; and

(c) the reference to 357(1) in item 11 of the table in subsection 539(2) that Act included references to subsections (1) and (2) of this section.

37 Effect of other provisions with respect to building work

   For the purposes of the application of section 357 of the Fair Work Act 2009 in relation to a person that employs, or proposes to employ, an individual to perform building work, subsection (2) of that section is taken to be replaced by the following:

"(2) The employer's state of mind is not relevant for the purposes of subsection (1)."

Note:   Section 357 of the Fair Work Act 2009 deals with misrepresenting employment as an independent contracting arrangement.

52 Chapter 7 (heading)

Repeal the heading, substitute:

Chapter 7—Federal Safety Officers

53 Part 1 of Chapter 7

Repeal the Part.

54 Part 2 of Chapter 7 (heading)

Repeal the heading.

55 Divisions 1 and 2 of Part 2 of Chapter 7

Repeal the Divisions.

56 Division 3 of Part 2 of Chapter 7 (heading)

Repeal the heading, substitute:

Part 1—Appointment

(55) Schedule 1, item 74, page 43 (line 1), omit "Division", substitute "Part".

(56) Schedule 1, item 77, page 43 (line 8) to page 44 (line 31), omit section 64, substitute:

64 Disclosure of information to the Advisory Board

(1) This section applies to information that is:

(a) information acquired by the Fair Work Ombudsman in the course of performing functions, or exercising powers, under this Act; or

(b) information acquired by a Fair Work Building Industry Inspector in the course of performing functions, or exercising powers, as a Fair Work Building Industry Inspector; or

(c) information acquired by a member of staff referred to in subsection 697(1) of the FW Act in the course of performing functions, or exercising powers, as a member of staff in relation to this Act; or

(d) information acquired by a person in the course of assisting the Ombudsman under section 698 of the FW Act, or in the course of performing functions, or exercising powers, as a consultant under section 698 of the FW Act in relation to this Act; or

(e) information acquired by a person in the course of assisting a Fair Work Building Industry Inspector under section 710 of the FW Act in performing functions, or exercising powers, as a Fair Work Building Industry Inspector.

(2) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information to the Advisory Board if the Fair Work Ombudsman reasonably believes that the disclosure is likely to assist the Advisory Board in performing its role.

Note:   Section 718 of the FW Act also deals with disclosure of information by the Fair Work Ombudsman.

(57) Schedule 1, items 78 to 86, page 46 (line 10) to page 47 (line 24), omit the items, substitute:

78 Subsections 65(2) to (8)

Repeal the subsections.

(58) Schedule 1, item 88, page 47 (line 32), omit "Director", substitute "Fair Work Ombudsman".

(59) Schedule 1, item 88, page 48 (line 3), omit "Director", substitute "Fair Work Ombudsman".

(60) Schedule 1, item 90, page 48 (line 10), omit "Director", substitute "Fair Work Ombudsman".

(61) Schedule 1, item 91, page 48 (lines 11 to 13), omit the item, substitute:

91 Subsection 71(1)

Omit "ABC Commissioner may", substitute "Fair Work Ombudsman may, with the leave of the court,".

91A Subsection 71(2)

Omit "ABC Commissioner" (wherever occurring), substitute "Fair Work Ombudsman".

(62) Schedule 1, item 92, page 48 (line 16), omit "Director", substitute "Fair Work Ombudsman".

(63) Schedule 1, item 93, page 48 (lines 17 and 18), omit the item, substitute:

93 Section 72

Omit "ABC Commissioner may, by giving written notice to the General Manager of FWA", substitute "Fair Work Ombudsman may, with the permission of FWA".

(64) Schedule 1, item 94, page 48 (lines 19 and 20), omit the item, substitute:

94 Sections 73 and 73A

Repeal the sections, substitute:

73 When exercise of powers and proceedings must cease

FWA matters

(1) Where FWA is exercising any powers in relation to an issue that is related to a building matter, it must cease exercising those powers if it is satisfied that the issue has been settled or resolved by the building industry participants involved in the issue.

Court proceedings for civil remedy provisions

(2) Where there is a proceeding before a Court pursuant to a civil remedy provision, and the proceeding involves an issue that is related to a building matter, the Court must cease dealing with the proceeding in so far as it relates to the issue, if the Court is satisfied that the issue has been settled or resolved by the building industry participants involved in it.

(65) Schedule 1, item 95, page 48 (line 23), omit "Director", substitute "Fair Work Ombudsman".

(66) Schedule 1, item 96, page 48 (line 25), omit "Director", substitute "Fair Work Ombudsman".

(67) Schedule 1, item 100, page 49 (lines 11 to 16), omit section 76, substitute:

76 Court not to require undertaking as to damages

   If the Fair Work Ombudsman or a Fair Work Building Industry Inspector is an applicant in court proceedings under the FW Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the court cannot require the Fair Work Ombudsman, the Fair Work Building Industry Inspector or another person, as a condition of granting an interim injunction, to give undertakings as to damages.

(68) Schedule 1, item 101, page 49 (line 19), omit "Director", substitute "Fair Work Ombudsman".

(69) Schedule 1, item 102, page 49 (lines 23 to 27), omit paragraphs (a) to (e) of the definition of protected person, substitute:

(a) the Fair Work Ombudsman;

(b) a Fair Work Building Industry Inspector;

(c) a person assisting a Fair Work Building Industry Inspector under section 710 of the FW Act;

(d) a member of staff referred to in subsection 697(1) of the FW Act;

(e) a person assisting the Fair Work Ombudsman under section 698 of the FW Act;

(ea) a person engaged as a consultant under section 699 of the FW Act;

(70) Schedule 1, item 103, page 50 (lines 5 to 11), omit paragraphs (l) and (m).

These amendments do different things, but they are very important. One thing they do is to implement the government's election platform: that is, they say that this new entity—which is obviously now well on its way to being set up to be a special secret police in the building industry—should not be the kind of autonomous juggernaut that was established by the former government, the kind of juggernaut that gave the lie to the idea that this is about preserving the rule of law because, when you look at who it turned its attention to, the statistics speak for themselves.

In the period between October 2005 and June 2011, the ABCC commenced 86 prosecutions against workers, their representatives and their officials, and five against employers. The situation did not get any better with the change of government because, in the financial year 2009-10, there were 29 proceedings commenced against workers, their representatives and officials, and none against employers.

That is why it is so critical that these amendments do what the government had actually proposed in seeking election—that is to say that this new entity will not be a stand-alone, autonomous institution that is able to continue a process of litigating against a particular sector of the community and a particular side of that sector but, instead, will come under the Fair Work Ombudsman as an administrative division of the Fair Work Ombudsman.

The amendments do a number of other things. I will not go through them all, but I will draw the House's attention to a redirection of the new inspectorate's activities to some of the real problems in the industry. These amendments would require the new inspectorate to deal with the very real problem of sham contracting, and that is where—and we know it happens, and even the current Australian Building and Construction Commissioner tells us that it happens, and it defrauds the Commonwealth's purse of revenue—someone turns up to work and the employer says, 'We'll give you a job, provided that you incorporate yourself or come back with an ABN, and you won't get sick leave, you won't get superannuation and you'll be responsible for taking out your own WorkCover insurance.' This practice is rife. These amendments will tighten up the definition of sham contracting and require the inspector to pay attention to it.

The amendments will also require the inspector to pay attention to another critical issue: the exploitation of overseas labour in this industry. We have no problem with people coming from other countries and working here, but they should be entitled to the same wages and conditions as local workers. We know that this does not happen in the construction industry. We have routinely seen instances over the last couple of years—and it has usually been the union that has exposed it, not a government inspectorate because they are too busy prosecuting the unions—of people being drastically underpaid. It is about time that we redirected the government inspectorate's attention to this serious problem, and that is what these amendments will do. I commend the amendments to the House.